Direct Power Purchase Agreement in Vietnam – The basics

In the newly issued Power Development Plan VIII (PDP VIII), the direct power purchase agreement (DPPA) mechanism is said to be implemented on a pilot basis. The DPPA mechanism could offer an alternative for renewable energy projects to sell electric energy. However, PDP VIII stops short of providing broad strokes of what the DPPA mechanism will look like. That said, before the PDP VIII was issued, in 2022, a draft decision of the Prime Minister (Draft Decision) on a pilot scheme (Pilot Scheme) for the DPPA mechanism was circulated for public opinion collection. Such a scheme offers a look into the possible structure of the DPPA mechanism under PDP VIII. In this article, we will discuss the basic structure of the DPPA mechanism and some key points in a DPPA.

Under the Pilot Scheme, the DPPA mechanism is financial/synthetic DPPA and works as follows:

1.         the renewable energy generator will enter into a DPPA in the form of a forward contract (hợp đồng kỳ hạn) with a customer, under which the customer will guarantee a fixed price for the energy produced by the renewable energy project (see 3) and in return, the generator will transfer the “environmental attributes” created by the project to the customer;

2.         though the name DPPA suggests there is a sale of electric energy between the generator and the customer, under the DPPA mechanism, the generator won’t physically deliver electric energy to the customer; that is why it is called financial/synthetic DPPA. Instead, the generator will sell all of the generated electric energy to EVN in the wholesale electricity market under a template power purchase agreement provided in the Draft Decision. The power companies of EVN will then sell electric energy to the customer at retail prices. Such electric energy may not necessarily come from the project.

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Comments on Draft Law on Telecom in Vietnam

In this post, we provide our comments to the draft Law on Telecom provided to us recently. The comments are prepared by Nguyen Quang Vu and Trinh Phuong Thao.

1.        Data center services and cloud computing services should be excluded from Law on Telecom

Position under the draft Law on Telecom

The draft Law on Telecom:

  • considers data center services and cloud computing services to be telecommunication services;

  • requires onshore providers of data center services and cloud computing services to obtain a telecom license; and

  • requires offshore providers of cross-border data center services and cloud computing services to sign a contract with a Vietnamese telecommunication service provider or to set up a representative office in Vietnam.

If adopted as currently drafted, immediately when the amended Law on Telecom becomes effective:

  • all onshore providers of server leasing service will need to obtain a telecom license;

  • all onshore software providers who deliver software over the internet (e.g. Google App Store or Apple App Store) will need to obtain a telecom license;

  • all onshore e-commerce apps or software which operate in the model of client-server will need to obtain a telecom license; and

  • all offshore service providers of cross-border software, software as a services (SaaS), infrastructure as a service (IaaS) and platform as a service (PaaS) or e-commerce services will need to sign a commercial contract with a Vietnamese telecommunication service provider or establish a representative office in Vietnam.

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New Decree on Protection of Personal Data in Vietnam and Comparison with GDPR

Please click here to download the pdf version.

On 17 April 2023, the Government issued Decree 13 on personal data protection (Decree 13/2023). Decree 13/2023 marks a significant milestone as the first comprehensive legal document that governs the protection of personal data in Vietnam. As compared to the draft decree on personal data protection (Draft Decree), Decree 13/2023 has been significantly improved to incorporate key aspects necessary to protect personal data to align with the General Data Protection Regulation (GDPR). In this post, we will discuss key issues under Decree 13/2023 while comparing it to the Draft Decree and GDPR. This post is written by Trinh Phuong Thao and edited by Nguyen Quang Vu.

1.         Things to be done by 1 July 2023

Ideally, before 1 July 2023, both onshore and offshore entities involving in collecting and/or processing personal data of Vietnamese individuals or foreign individual residing Vietnam should do the following:

  • having proper consents from the relevant data subject (see 7);

  • if it is a data controller, having a contract with the relevant data processor (see 4);

  • determining whether it deals with basic personal data or sensitive personal data;

  • preparing and submitting an assessment of the impact of personal data processing to the Ministry of Public Security (MPS) (see 10);

  • preparing and submitting an assessment of the impact of offshore transferring personal data to the MPS (see 11);

  • setting up system to protect the safety and confidentiality of the personal data which it collects or processes; and

  • setting up a personal data protection department and a data compliance officer if it deals with sensitive personal data.

Decree 13/2023 only exempts small and medium enterprises or start ups from complying with certain requirements until 1 July 2025.

One key missing ingredient though is the potential penalty which may apply in case of non-compliance. Accordingly, currently, Decree 13/2023 has no teeth in enforcing the above requirements. Unlike Decree 13/2023, the GDPR has clear penalties and fines applicable to violations of the GDPR.

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Foreign ownership limits in Business Cooperation Contracts in Vietnam

In certain business sectors (e.g., film projection service, or road transportation services), Vietnam undertakes to allow foreign investors to invest though setting up a joint venture or a business cooperation contracts (BCC) with capital contribution not exceeding certain limits. However, it is not clear if the ownership limit provided in these commitments apply to investment through a joint venture only or to both investment through joint ventures and BCCs.

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